tv Today in Washington CSPAN October 13, 2011 6:00am-9:00am EDT
totaled more than $300 billion. last year, our trade deficit with china on advanced technology products was a staggering $92 billion in one year alone. i just bought one of these very nice iphones. it is very, very nice. do you know where that product is made? and the ipad is made in china and the ipod and dell computers and xbox and big-screen tv's. none of these american inventions. we pride ourselves. steve jobs just recently passed away. great businessperson. but we pride ourselves on developing these technologies, but where are they made? more often than not, they are made in china. according to a december 15, 2010, article in "the wall street journal" -- quote -- "one widely touted solution for current u.s. economic woes is for america to come up with more of the high-tech gadgets that the rest of the world craves,
yet two academic researchers estimate that apple's iphone, one of the best-selling u.s. technology products, actually added $1.9 billion to the u.s. trade deficit with china last year. so we develop these products but we can't manufacture them here because these companies prefer low wages in china. and on and on it goes. not just blue-collar, white-collar jobs as well. mr. president, -- and today, we're not talking about china, we're not talking about mexico. we're talking about korea, we're talking about panama, we're talking about colombia, but it's the same old story. chamber of commerce is back again, creating all of these jobs, until the day after the agreement is signed, and then we talk about how they could throw american workers out on the street. you know, it's interesting,
mr. president, poll after poll shows that to say the least, the american people do not have an enormous amount of respect for the united states congress and see congress living in a very different world than working class people are living in, and i don't know of any example where that schizophrenia is greater than in terms of trade. you go back home, i don't know what it's like in rhode island, tell you what it's like in vermont. you ask people, what do you think about these trade agreements with china? do you think they are creating jobs in america? are you cuts? of course not. everybody knows that. and the polls tell us that. in december, 2010, an nbc news/"wall street journal" poll, 69% of americans believe that -- quote -- "free trade between the united states and other countries cost the u.s. jobs" -- unquote. i think every group in america except the united states congress seems to get that point. but then again, the united states congress is surrounded by lobbyists and campaign
contributors that come from big money interests, and they like these unfeather -- unfettered free trade agreements. the economic policy institute has estimated that the korean free trade agreement will lead to the loss of 159,000 american jobs and will increase the trade deficit by nearly $14 billion over a seven-year period. why do you want to go forward in a trade agreement that will cost you jobs? now, president obama has estimated that the korea free trade agreement will -- quote - "support at least 70,000 american jobs" -- unquote -- but the headline of a december 72010 article in " the new york times "says it all -- quote -- " few new jobs expected soon from free trade agreement with south korea." according to this article, the korean free trade agreement is likely to result in little if any net job creation in the short run, according to the government's own analysis, our government's own analysis. this analysis was done by the
u.s. international trade commission which projects that our overall trade deficit will increase, not decrease, if korea free trade is implemented. this is our own international trade commission. what are we doing? what are we doing? now, mr. president, let me just touch on one aspect of the korea free trade agreement which deserves a lot of focus and i fear very much that it's not, and that is that the korean free trade agreement will force american workers not just to compete against low wage workers in south korea but also to compete against the virtual slave labor conditions that exist in north korea, a country which is certainly one of the most undemocratic countries in the world, and to add insult to injury, not only are our workers going to be competing against
slave labor in north korea, some of the proceeds from this free trade will go to the dictatorship of kim jong-il, certainly one of the more vicious dictators in the entire world. and what that is about, mr. president, is that a number of companies in south korea, including hyundai and many others own companies that are doing business in a large industrial area in north korea, and what this agreement will allow is products made in north korea to go to south korea and then come back into the united states of america. and i know there has been a little bit of confusion on this but there shouldn't be. according to a january, 2011, report from the congressional research service -- quote -- " -- i hope everybody who plans on voting for this free trade
agreement with korea hears this. this is c.r.s." there is nothing to prevent south korean firms from performing intermediate manufacturing operations in north korea and then performing final manufacturing processes in south korea. for example, as much as 65% of the value of a south korean car coming into the united states could actually be made in north korea if this trade agreement goes into effect." and today we have over 47,000 north korean workers that are currently employed by more than 120 south korean firms including hyundai at the kaesing complex in north korea. what an agreement, what an agreement. slave labor in north korea manufacturing products which go to south korea and then come into the united states of america, and meanwhile, the dictatorship of north korea gets a piece of the action, a significant piece of the action on top of the pennies an hour
that the north korean workers get. in 2007, the then-prime minister of south korea, is now the current south korean ambassador to the united states said, and i -- quote -- "-- ambassador to the united states said --" the planned ratification of the south korea-u.s. free trade agreement will pave the way for the export of products built in kaisong, north korea, to the u.s. market." end of quote. isn't that wonderful, isn't that wonderful? bad enough for the workers of our country to have to compete against people in china and vietnam, people making 20 cents an hour, 30 cents an hour. now we're asked to compete against slave labor in north korea. that's the treaty that people will be voting for today. mr. president, i think a lot of folks have mentioned in terms of colombia the assault on trade unionists there.
since 1986, some 2,800 trade unionists have been assassinated. less than 6% of these murders have been prosecuted by the colombian government. and last year alone, last year alone in a small country, more than 50 trade unionists were assassinated in colombia, up 9% from 2009. now, i would ask you, mr. president, if in colombia 50 c.e.o.'s of companies were killed last year, were murdered last year. do you think that people here would be voting for a free trade agreement with colombia? or would they say why would we want an agreement with a company -- with a country which is so unlawful, which is so brutal, where so many c.e.o.'s are being killed? but it's not c.e.o.'s, it's just trade union leaders, so i guess it is okay to have an agreement there. i would also tell you, mr. president, that president
obama had a different view on colombia when he was a candidate for president in 2008. in october of 2008, candidate barack obama said that -- quote -- "the history in colombia right now is that labor leaders have been targeted for assassination on a fairly consistent basis and there have not been prosecutions." end of quote. candidate obama in 2008 was right to oppose this trade agreement. unfortunately as president he is wrong to support it right now. let me say a word about the panama free trade agreement. panama is a very small country. its entire annual economic output is only $26.7 billion a year or about .2% of the american economy, so i think no one is going to legitimately stand up here and say that trading with such a small country is going to significantly increase american jobs. then why would we? why would we be considering a
trade agreement with panama? what's going on there? well, it turns out, mr. president, that panama is a world leader when it comes to allowing wealthy americans and large corporations to evade u.s. taxes by stashing their cash in offshore tax havens. the panama free trade agreement would make this bad situation much worse. i'm a member of the budget committee, as you are, mr. president, and we have heard testimony time and time again that our country is losing up to $100 billion every year as corporations stash their money in postal addresses in the cayman islands, bermuda and in panama, and this trade agreement makes that situation even worse. according to citizens for tax justice, "a tax haven has one of three characteristics. it has no income tax or a very
low rate. in tax, it has bank secrecy laws, and it has a history of noncooperation with other countries on exchanging information about tax matters. panama has all three of those, and they are probably the worst "end of quote, according to citizens for tax justice. the trade agreement with panama with effectively bar the united states from cracking down on illegal and abusive off-shore tax havens in panama. combating tax haven abuse in panama would be a violation of this free trade agreement exposing the u.s. to fines from international authorities. well, at a time when we have a $14 trillion plus national debt and at the time when we are frantically figuring out ways to try to lower our deficit, some of us believe that it is a good idea to do away with all of these tax havens by which the
wealthy and large corporations stash their money abroad and avoid paying u.s. taxes. the panama trade agreement would make that goal even more difficult. i want to say another word on issues that is i think important as we look into the future. the proposed korea free trade agreement threatens both the 340-b drug program which requires drug companies to provide discounts on covered outpatient drugs purchased by federally funded health providers such as community health centers and other safety net provider and the ability of medicare part b to hold down the prices of outpatient drugs. the korean free trade agreement would potentially allow korean drug manufacturers to challenge the pricing under these programs on the grounds that the prices are not market driven.
in other words, forcing prices up in this country. and that is something that was pushed by the way, by our trade -- our trade representative, not theirs. in essence, the parliament industry's lobbyists with complete indifference to the plight of millions of the most frail and vulnerable americans, have succeeded in inserting provisions into the korean trade agreement that would allow korean companies to maximize their -- maximize their profits by challenging the cost control measures under the 340-b and medicare part b programs. unfortunately, mr. president, this is just the tip of the iceberg. right now the pharmaceutical lobby and they are a very, very powerful lobby, and the united states trade representative are negotiating a new trade agreement, the so-called trans-pacific partnership that i fear very much will make a bad situation in terms of drug access for the developing
world, for poor people all over the world much worse than it already is. their aim yet again is to maximize drug company profits at the expense of the most vulnerable populations by tying the hands of health authorities here and in other developed and developing countries abroad who seek to provide access to low-cost generic pharmaceutical drugs for their citizens. in negotiating the trans-pacific partnership, our government is actively pushing intellectual property laws for medicines that are more restrictive than we impose even here in the united states with the effect of making it far more difficult to get generic drugs on the market in those countries. one of them, vietnam, is a good example. vietnam obviously is a very, very poor country. vietnam has received more than $320 million from the president's emergency plan for aids relief, created on the
president -- under president george w. bush and continued under president obama since 2004. the function of this program is to make sure that the poorest people in the world who have diseases like aids are able to get the drugs they need at a price they can afford to pay. and that means generic -- making generic treatments available. the pet far program has had significant success. as somebody who was not a great fan of president george w. bush this is an area where he actually did something quite positive and that program is credited with saving millions of lives in 15 developing nations over the last seven years. in the face of one of the most severe humanitarian crises in modern history the united states put billions of dollars into doing something about it and we are doing that today. so why in the face of this success by one arm of our government would another arm work to pull the rug out from
underneath it? yet that is what the u.s. trade representative's office is doing just now. in other words, on one hand what we are trying to do is the right thing, the humanitarian thing, and make sure that poor and sick people around the world are able to get the medicines that they desperately need to stay alive at a price they can afford to pay. and on the other hand, another part of the united states government is saying wait a second, we got to protect the interest of the drug companies, make sure they can make as much money as possible, that they can charge and force poor companies to pay outrageously high prices for drugs even if that means that many, many people die because they can't afford those drugs. so this is a contradiction, this is what our new trade policies are about. i will be back on the floor at some point in the not-zoo-distant --
not-too-distant future to talk more about this but let me conclude, mr. president, by saying this. the country is in the midst of the worst economic crisis since the 1930's, millions of americans have seen a decline in their standard of living, the gap between the rich and everybody else is going wider. that is the reality of the american economy today. one of the reasons for the collapse of the middle class is the loss of millions and millions of good-paying manufacturing jobs. and one of the key reasons -- not the only reason but one of the key reasons that we are losing millions of manufacturing jobs are disastrous trade policies designed, designed to allow american corporations to shut down here, move to low-wage countries, hire people there, pennies an hour, bring their products back. that is a policy, i suppose you can say that has worked if you're the c.e.o. of a large corporation. you make a lot more money paying people 50 cents snow shower than
$20 an hour. you make a lot more money working in a country where there are no environmental standards rather than a country where you have to have some standards protecting air and water. that's what our trade policy has been. and it seems to me to be enormously foolish for us to continue this failed policy of nafta, of cafta, of permanent normal trade relations with cheap and extend them to korea, panama, and colombia. i urge, i urge my colleagues to stand up to the big-money interests who want to us pass these trade agreements, stand up for american workers and say no, trade is a good thing but it has to be based on principles that protect ordinary americans, working people, not just the c.e.o.'s of large corporations. with that, mr. president, by yield the floor.
the presiding officer: the senator from maine. ms. collins: thank you, mr. president. mr. president, i rise today in the wake of another very sobering jobs report. unemployment remains stalled at 9.1%, 14 million americans are out of work. another nine million have been forced into part-time jobs because they simply cannot find full-time employment. these challenging economic times demand that congress and the administration put aside partisanship and work together in earnest to address the prolonged jobs crisis. many of the decisions that will come before congress in the next few months will be difficult ones, including those that must
be made to restore fiscal order to our nation's books. but there are bipartisan measures that we know will create and preserve jobs now. we must work together to advance them. one such measure before us today is the free trade agreement with south korea. as president obama stated last week, this agreement will make it easier for american companies to sell their products in south korea, and provide a major boost to our exports. south korea is our country's seventh largest trading partner. the u.s. international trade commission estimates -- estimates that implementation of this agreement would increase
our gross domestic product by $10 billion to $12 billion, and annual merchandise exports by $10 billion. the i.t.c. further estimates that the agreement will reduce the u.s. trade deficit with korea by between $3 billion and $4 billion. and analysis of the korean agreement conducted by the staff of the i.t.c. at the request of the senate finance committee concludes that the agreement could create up to 280,000 american jobs. including more than 650 jobs in my home state of maine. mr. president, just this week there were announcements of 130
jobs lost at a paper mill in maine, and 65 jobs eliminated at a call center. so these new jobs, potentially 650 new jobs, would be welcome indeed. south korea is the fifth largest international market for maine products. last year, the value of maine exports to south korea reached nearly $100 million, including $31 million in chemical products, $29 million in wood pulp, $15 million in civilian aircraft and engine parts, $7 million in electrical machinery, and $5 million in coated paper and paper board. upon implementation of the u.s.-korean free trade agreement, more than 95% of
maine's exports to south korea would be duty-free. let me repeat that. 95% of our exports from maine to south korea would be duty-free. that means that the elimination of these barriers to maine's exports would expand markets for maine's manufacturers and agricultural producers. and that, mr. president, translates into saving jobs and creating jobs. korea is the fourth largest and fastest-growing market for america's frozen potatoes, a major industry in my state. in 2009, the u.s. share of the korean market was 81% compared to 2% market share for the european union. but with the implementation of
the european union-korean trade agreement this past july, the european union frozen potatoes now enter the korean market duty-free. that obviously gives european union growers a significant competitive advantage over american exporters who face an 18% tariff for shipping their products into korea. the u.s.-korean agreement would eliminate this tariff immediately, leveling the playing field for our producers. according to the maine potato board, which has endorsed this agreement, passage of this free trade agreement is expected to translate into a $35 million annual increase in u.s. frozen
potato exports to korea. more important, in the long term it will allow american potatoes to be the product of choice in the korean market because, as the presiding officer well knows, maine potatoes taste better than those grown by the european union countries. in all seriousness, we do need to eliminate these discrepancies in tariffs that give our competitors an advantage over our american producers. exports are essential to a strong industrial manufacturing base throughout our country and in the state of maine. i want to read an excerpt from a letter that i recently received from the plant manager of the
general electric energy plant in bangor, maine. the plant manager had this to say about the potential impact if this free trade agreement were approved. he wrote, as follows: "g.e.'s continuing act to pursue expanding international opportunities for our aviation, energy, and financial services exports is critical to our more than 700 workers in the state of maine. in fact, 100% of the new steam turbine units coming out of our bangor plant this year and next will be exported." that just shows how critical that export market is to maintaining those 700 jobs in maine. the bangor plant as, in addition, recently producing
components for gas turbines. to this end, we have invested roughly $30 million in bangor to expand capacity. "these gas turbines under current law face tariffs of 8% in korea. if the u.s.-korean free trade agreement is passed, the g.e. plant manager in bangor told me that the tariff on the gas turbines produced at the bangor plant would drop from 8% to zero. and that obviously would make those g.e. products and g.e.'s employees in maine all that much more competitive. for maine's wood pulp producers, korea is already the second-largest international market that they have. exports to korea account for
nearly 17% of the total production coming out of the pulp mill in woodland, maine. in an e-mail to my office, burt martin, a director of the pulp mill in washington county, had this to say about the importance of the korean market to his business operation in maine: he wrote. "free trade with asian countries means that we have an operating pulp facility in woodland, maine. koreans are good-paying customers, high revenue, and they are an important part of our market markets" maine's bluy growers also will benefit from the phase-out of tariffs on wild blueberry products. while i would have preferred to see the tariffs of blueberries eliminated immediately, the way that they are in many other products that i've mentioned,
the tariff reductions that would come about as a result of this agreement will help our blueberry growers compete in an increasingly important market. this agreement will also unlock new market opportunities for maine's iconic lobster industry. live lobster exports to korea currently face a 20% tariff. under the agreement, this tariff would be phased out over five years, making it far easier for maine to compete in the marketplace in korea. fairchild semiconductor in portland, maine, is another strong supporters of this agreement. the manager of fairchild cites the benefits of tariff elimination, regulatory improvements, stronger
intellectual property protection, and simplified trade clearance procedures, measures that will help streamline customs procedures and help u.s. companies cut down on the costs of doing business as advantages that would be brought about by this agreement. mr. president, the bottom line is that exports to korea support maine jobs. passage of this agreement is critical to ensuring not only that we can expand export opportunities but also that we do not lose market share in one of the world's largest economies because our foreign competitors are more aggressive in their pursuit of trade liberalization agreements. on balance, i believe that the
u.s.-korean free trade agreement is good for america and good for the state of maine, and i will vote for it. i am convinced that the elimination of tariffs will create jobs and help us save jobs at this critical time in our economy. i also plan to vote for the agreement with panama, a country with which the united states had a $5.7 billion trade surplus last year. but, mr. president, i cannot support the free trade agreement with colombia. this was a difficult decision for me to reach, and i've given is iit considerable study and thought. burkes unfortunately, the violence against labor unions continues at an unacceptably high rate in that country.
i do appreciate and recognize that the colombian government has taken steps to improve in this area, but i think that it's simply too soon to declare the labor action plan a success. i think more time is needed to assess progress in this area, and i wish that the president had brought forth the two agreements that i can support -- those are south korea and panama -- and held back on the colombian agreement until we had a better sense of the direction of the country and where we are going in making progress with the labor action plan. mr. president, the benefits of free trade are not spread evenly over all sectors. and with any trade agreement,
there is the poe tension that some u.s. workers and industries may be harmed. that is why i've looked at each agreement individually over the years, and i've supported some and i've opposed others, and frankly the criteria that i apply are whether the agreements benefit the people of my state and the workers of this country. it is also why i have been such a strong supporter of a robust trade adjustment assistance program, and i have also strongly supported tough enforcement of trade laws to protect u.s. workers against unfair trade practices. i've testified before the i.t.c. in cases involving the paper
industry, where there has been illegal dumping; i've also been a cosponsor of the bill that we just passed yesterday to crack down on currency manipulation by the chinese government. but if the united states does not adopt policies to expand trade opportunities in a fair way, we will lose out on market opportunities, and that means we will lose out on the creation of jobs. the jobs that would be created or sustained here at home will instead be created and sustained in other countries that are aggressively pursuing trade agreements. with nearly 95% of the world's customers living outside of our
operation was screwed up from the start, was mismanaged, and was reckless. and that it almost certainly aided the iranian nuclear weapons program, which is why i wrote about it in my book. as part of a larger chapter really in the book about the degree to which iranian operations by the cia had been mismanaged and had been dysfunctional, and that as a result, the u.s. intelligence was virtually just as blind dealing with the iranian weapons of mass destruction issue as it had been on the iraqi weapons of mass destruction issue. i was first subpoenaed, there was a federal grand jury, paneled almost immediately after the book came out. the fbi began an investigation,
and started talking to people over at washington to try to find out where my information came from. and they begin, i now know, based on documents that have been filed by the government in the case, that they got, they began to effectively spy on me, too. they got my phone records, bank records, credit card results, travel records, airline records, e-mails. and whether or not they're actually wire tapping my phone in real-time i'm not sure, but then i think what shocked the government after they subpoenaed me was that they got a judge, federal judges disagreed with the decision to come after a reporter. i think they expected that every judge in the country would go
along with their assault on the press. and instead, they got a judge who actually come in my opinion, believes in the first amendment, and who eventually quashed the subpoena from the grand jury. then they actually quashed to subpoenas from the grand jury, and been suppressed for third subpoena of me for the trial after they actually indicted someone in this case. and so currently, the last subpoena against me to testify was suppressed by the judge, now the government is currently trying, has filed a series of motions to try to get the judge to change her opinion. and so we're kind of waiting the results of that. i think the reason this case has been important is that this is
the first time, according to my lawyers, they believe, the first time that a subpoena to a reporter in a criminal, federal criminal case has been quashed. and i think that that is very significant. i think it could uphold any really important tradition in the united states, which was badly damaged since the war on terror began. as you may remember the plane? led to a whole series of subpoenas against reporters, into a lengthy battle that led judy miller of "the new york times" to go to jail. patrick fitzgerald, who was the special prosecutor in the plane? was given independent powers by
the attorney general at the time and he essentially decided he was not going to recognize a reporter's privilege and began to subpoena reporters all over washington. this was something new that had broke down, kind of an unspoken agreement between the press and the government that it lasted about 30 years since the late '70s. there had been kind of this, as i said an unspoken agreement between the government and people who covered national security from about, and where they were conducted leak investigations of stories but they would never really do anything about it. it's kind of like that scene in casablanca where they say there's gambling going on, and the guy says yes, round up the usual suspects and the what kind of let everything guy.
we all kind of understood well, as long as you let the government know what you're working on and give them a chance to at least talk to you that they would accept more or less what you were doing. that all changed with the plane case. it was the great unintended consequence of the libya criminal case. and i know a lot of liberals and progressives don't like to think about the fact that the pressure put on the government to go after judy miller and send her to jail had an enormous cost to the american press corps, especially the washington press corps. it led to a breakdown of the entire system, this ambiguity that been built into the system for 30 years disappeared almost overnight. and now the government, both
republicans and democrats, no longer feel any compunction about subpoena reporters and prosecuting leakers, sending people to jail for talking to reporters. and i think that what we are now seeing with the obama administration is that this really does cross party lines. at first people thought it was just george bush, but, in fact, i think what it shows is that anyone in power wants to try to cut down on, wants to control the power of information. they like to leak themselves. the white house leaks more than any other institution in washington, and the leak to people who will write what they want to write. what they don't like is when someone else leaks embarrassing information or politically damaging information to
reporters who write those stories. and so they are trying to essentially closed down the avenues of embarrassing politically inconvenient stories, and limit the areas of national security reporting into kind of an accepted box where they make sure that reporters know that you can only go within these limits, otherwise there will be penalties and there will be consequences. and essentially, that as lowell said come in my opinion an effort to create in a de facto sense without having to get congress to approve it, a form of official secrets act, which is the british law that outlaws reporting in certain areas of government secrecy. i think that if this kind of
action by the government is allowed to continue, that's what they will be doing, is going after more and more reporters who write about things that are considered inconvenient. what they have not been able to do, as far as i can tell, ever in history is to ever prove that any story on television ever truly damaged national security. will the fact that, you know, when the american press has never in my opinion, never harmed american national security, even the case you pointed out earlier in world war ii for the "chicago tribune" revealed -- >> a great case. >> this is a classic case in world war ii, the "chicago tribune" wrote a story saying the united states had broken japanese codes, and franklin roosevelt got furious about this case and wanted to prosecute the
"chicago tribune" for espionage. >> colonel mccormick. >> but they didn't do it. it was probably the right thing to do because by ignoring it, the japanese never read the "chicago tribune." [laughter] and it didn't make any difference come and i was probably the closest case you can ever come to actually potential damage to american national security, and it had no effect whatsoever. so, i mean, i think the thing that bothers me the most about this is that you can tell that they are trying to impose limits on the freedom of the press. they are very clearly, in the filings they have filed in my case, they've explained in great detail that they think i went too far, i went across accepted boundaries and i wrote things
that were out of the accepted boundaries for america's national security reporting. so they want, the government wants to create for itself the power to decide what is accepted national security reporting and what is not. and that in my opinion is unconstitutional. and that's why i'm fighting this. that's why i think, you know, in the next week or two should be a very critical time to determine whether, which way this case goes. with that, i would be happy to open it to questions, and maybe if you just ask questions we can kind of keep going and talk with whatever direction you want. >> is the producer person, where is he? let me explain since i stayed up
last night and read these two documents which are online, and if you want to come up later we will give you the link, you can download them, but before we start with the first question, when you say outside the bounds of acceptable practice, what they -- >> the government's opinion. >> the government says, and the judge cites in the opinions that they first quash the subpoena, the government represented on the iran story, which also happens with the nsa eavesdropping story, you and your editors went to the white house, right? you seem to be on a shuttle to the white house, although it's only about four blocks from your times bureau. to go talk to the white house about your store, right? should we publish this? with a damaged national security, and to be a group of
people there. the group in this case on this iran story, chapter nine, included now professor at stanford, condoleezza rice, who i understand maybe a witness at the trial. >> correct. >> and at these meetings, it was made clear to you and your washington bureau chief, jill abramson is not executive editor of "the new york times" that if you publish this is going to damage national security and possibly cost american lives speak as well, that's one of the declarations they have made on the case. >> its official declaration, right. so "the new york times" agreed not to publish it. >> it's also one of the declarations in the case. >> so that story, it still has not been published in the pages of "the new york times." it's only available in this book. they are making the argument that the government is making the argument that because of
"the new york times" didn't publish the story, therefore you stepped outside of the bounds of acceptable journalism. >> right. that's what i was referring to. the only reason i hesitate to let getting into the details of that is because that is an issue under current litigation. >> okay, so do we have any questions? [inaudible] >> december 2005, if "the new york times" do about it a year before, the $65,000 question in my mind, did they know before the election? >> they knew before the election. >> what would the results be if they had leaky before the election? >> did you hear the question?
>> no. >> the question was that "the new york times" published the store in late 2005, after the election, but had the story for year, had it been published before the 2004 election, would that have made any difference? >> i thought about, i think everybody involved has thought about that and i think you could go either way. it's hard to tell how a story would affect an election. it might not have had any effect at all. could have, i mean, so, i try not to think about the local impact of the story when you're writing it because that could drive you crazy. just write a story as soon as you can get it in the paper. >> but the question is here did it drive you crazy? it didn't get published before the election. >> i was pushing for it to be published. [applause]
i think that's, i said that before. >> question over here. >> thank you very much for speaking with us tonight. do you think that they are still under surveillance by the government? are they still investigating you? and secondly, how has the government surveillance affected your ability to function as a reporter? >> i'm not sure, i think it would be difficult for them to get the legal authority to continue now that the subpoenas have been quashed. although it's possible. they could have other parallel judicial actions going on that i don't know about. i know that they have thought about conducting, i know they did conduct a leak
investigations of other chapters indigo, too, that never went to prosecution. so i don't know whether they're still doing any of the surveillance now, but i do know that they did. >> he called me up one day and says, here in my files. another leak investigation, another story but the story is not in the book. >> yeah, that was funny because my lawyers, when his first subpoenaed in 2008, my lawyers decided let's forget the government -- >> freedom of information act request. >> let's foia the government on everything they have from you. and the government said we can't do anything about ongoing investigations. but we will get back to you on closed investigations. about a year or two later, i got this huge envelope from the fbi, or the justice department, i don't know which one, and it was all these old leak investigation
they had done, including stories lowell and i had done together that it was hilarious to go through them because they were taking them so damn seriously, you know? these stories that i can't, some of the stores i couldn't imagine they were doing investigations on. lowell and i did a really good a story together about, if you remember the russian spy robert hanssen, who had a lot of personal issues,. >> fbi agent who is a russian spy. >> he gave up the fact that the u.s. had dug a tunnel under the russian embassy in washington and bug the russian embassy. he told the russians about that right away. and we had written that, when was that? >> before maybe. >> and i found this huge file come in this file was page after
page of the investigation of me and lowell. >> but he did say something earlier that i think is very important, which it experienced personally, and that is, i have sat at the desk of an fbi official who was in charge of counter espionage. when he was in charge from inside the building, inside the jay edgar hoover building. they are complaining to me, and don't worry about leak investigation because every time we have to talk to a journalist the attorney general always says no. we can't subpoena journalist. this is 10 years ago. and, in fact, in the middle of this conversation a gentleman walked into his office, actually has been here at berkeley a one of our symposium, who was then in charge of actual counter espionage, and he lifted him to call directory off his bosses desk and said, as a leak
investigation i have to check if you've been talking to lowell bergman, but i'm sitting here. [laughter] so, the change is a very dramatic change. the bargain has broken down. >> it was, the problem was it was all unspoken and it was like created ambiguity. built into the system. nobody wanted to attend for 30 years that we had this bargain with the government where they, they will go through the exercise of doing the leak investigations but they would never do anything about it. and that all changed with the plane case, virtually overnight. and it opened the floodgates to prosecutions and investigations and much greater pressure on news organizations for the government. and that's, had a chilling
effect both inside the government on people who might consider being a whistleblower, and it's also had an effect on news organizations and reporters who have to be much more, have to keep this in their mind about what's going to happen to you if you write about certain things. >> remember now that the beginnings of national security reporting that we're talking about began during democratic administrations in the early 1960s. they really hated it, the kennedy administration, johnson administration. and now the obama administration has actually made this into an effective means the prosecution of the press or of leakers. there are five grand juries -- >> well, they've gone beyond grand jury. five indictments. >> painting now. -- pending now.
>> you see the government doing this. the government is unfortunately not a computer, subways and force a not a computer, it's a bunch of guys with careers and agendas. what is the highest ranking official who has named himself on his name appears in action against you? how much higher than him does this have to go for him to get the authority to do whatever they're doing to you? >> subpoena of a reporter has to be approved by the attorney general personally. so eric holder approved the subpoena. and prior to that michael mukasey and alberto gonzales. i think michael mukasey was the first one. and i think gonzález didn't last long enough to subpoena me. and so has to go to the attorney general. the attorney general in my opinion would not do this without approval of the white house. i think it probably goes to the white house council.
i'm sure it goes to the white house counsel and msha goes to the president to subpoena a reporter from a large news organization with the potential of putting them in jail. and so it just on paper it goes to the attorney general. i think it goes beyond that, too. >> the need to protect elites with respect to national security, is that a leading cause in your mind the failure to pass the federal shield law? >> yeah, i think the shield law, if you don't know, shield law is, legislation been stuck in congress for several years to give reporters the form of a privilege that would protect them from these kind of subpoenas.
federal shield law has been stuck in the senate, i think it passed the house a couple years ago. in order to get approval from the white house, even the obama white house, they had to agree to a larger loophole for national security reporting. so the current, as it is currently written, the federal shield law would not cover national security reporting. it would cover other kinds of reporting. the problem is that really the only people who get subpoenaed in washington, or most cases, at the federal level are doing national security reporting. so it's basically gutted, the shield law. and then after they gutted the shield law they let it die in the senate. so they gutted it and killed it at the same time. which is too bad, and i think
part of it is just the atmosphere in washington since 9/11 has been, you know, this traditional balance between civil liberties and security has gone all the way over to security on virtually every issue. there's no real constituency for civil liberties or for the first amendment in washington. nobody really cares about reporters and what happens to them. >> how are your legal expenses handled? >> well, my public book publisher, simon & schuster, handled, has handled it for the most part. recently my employers, it's been
going on so long they finally agreed to do this pro bono, so they have been very stand up about this. so they have been very supportive. >> former u.s. attorney in new york? >> david kelly who is, he said -- and joel kurtzberg, great lawyers. >> nothing like a free lawyer. >> given what you describe as the atmosphere in congress, is there any activity on the part of publishers, and the organization reporters organizations, to try to put pressure on board to change that atmospheric? >> well, they have been pushing the shield law, the newspapers and other media groups have been trying to get the shield law, but it's nstac. i don't know if it's ever got out of the senate judiciary committee but it was stuck in the committee for a long time.
and it got out of committee and maybe on the floor, but it died about a year or two -- it's basically been in limbo for year or two. visigoths, so national security reporting which they thought was going to make a difference, and passage, it did not make any difference. >> where is the line, in your own mind, and on when to publish and when not to publish? are there other important stories, stories that you deemed to be important that didn't make it into the book because you just decided on your own this is too dangerous and too much of a threat to our own national security? >> yeah. i mean, there's always a balancing act that you do in your own mind. when you talk to people, talk to your sources about it. you know, there are difficult
decisions. i've had a lot of experience with that over the years because i've covered this stuff really, i covered the cia starting in 1995, and so i have heard all of the explanations from them countless times, you know, on many stories that they would say don't write that, don't write this. and one of my favorite stories that really changed, changed my mind about how to accept their version of stories is sort of like the bay of pigs story. in 2000, i think it was, and i found out that, it was 2000 or early 2001, i found out that the cia had a team of officers in afghanistan trying to work with the northern alliance to kill bin laden. and and george go once i found
out about it i called the cia for comment. and george tenet who was then the cia director called me personally and he said don't write that story can you get my guys killed. so i said okay, won't write the story. so i didn't write the story. then 9/11 happens. and i finally wrote the story after 9/11, but then over the next couple of years, as you may remember, one of the big debates in washington, once they create the 9/11 commission in july the senate house joint inquiry into 9/11 prior to that, was why didn't the cia do more prior to 9/11 to get bin laden. and i, after going through all of the documents and all the history on that, i wondered, i later wondered was, was about operation the cia was doing just
a token operation in order to avoid, in order to say they were doing something when they really weren't doing anything. and if i'd written about that at the time would that have created, cause a debate to happen in washington about should we get more aggressive about bin laden or not. because i now know, bin laden knew all about those guys. he knew everything about massoud. he killed massoud today's before 9/11 to get him out of the way. and so i think that really made me think about how much should you listen to them versus, you know, obvious he listened to them but how much independent thought do you have to bring to these issues and not just accept what the government is saying. and it played a lot, a bit role and how i thought.
>> i'm not a journalist. maybe it's just common knowledge a journalist, but in the last 50 years, the last 100 years, what stories can the government put forward as proven have damaged national security, ever? >> well, they can't, ever. >> i mean is there anything we would accept as common sense that probably that? >> it's funny, i'm glad you asked that question, because, another story i got into thousand, a source that gave me the internal cia history of the iran coup that the cia mounted a two in 1953 to overthrow the democratically elected leader of iran and we reinstalled the shah. and i got us into history, 250 page history, and that's going to write a big story about this and i thought, before i start
writing, you know what i should do, i should read "the new york times" pentagon papers driven they got another secret history. i thought that must be really an amazing story. so i went back in the microfilm room and read the original pentagon papers stories. and i was expecting some shocking revelations. and i was stunned. all the story said was, you know, the war in vietnam is really not going very well. and if you go back and read those stories, and it's amazing that it was a court case built around that. and it's just, it just shows you that it's all about the moment, you know, the anger of government officials at the moment because something is getting out that they don't want to get out.
>> one of the surprising things when you get when it is classified files, if you apply for, -- [inaudible] newspaper clippings that are classified spent i'll tell you something very funny that's happened in my case that i can now talk about. well, i can't talk about it. [laughter] >> wikileaks was supposed to be a disaster. as far as i know -- >> right. i've read a lot of the wikileaks cables. most ambassador saying prime minister acts is kind of a moron. it's like cocktail party gossip. >> i know a former senior state department person who now uses the wikileaks documents as a way to liberate his writing ability.
he can share now in his classes he teaches in washington everything he wrote. he argued to me people don't understand how good state department people are in their writing ability. literary ability. >> that was the thing that struck me as reporter, you go meet embassy officials in some country, they always play dumb with reporters, you know? and you think, you ask questions about the country and i did know that, i didn't know that, and then you think are they really that stupid or are they just plain? the thing about these cables it shows they actually know what they are doing, they are pretty smart. >> my question is do you think that journalists coming after you will have the same fervor you do for the truth? >> yeah. i know different, i think every,
almost every reporter i know what do the same thing that i'm doing. i think, you know, and you know, and i know for a fact in fact that a lot of people, one of the reasons i'm doing this is because i'm afraid that if i doubt that i will disappoint other reporters who expect me. you know, i'm only doing what people expect me in the profession to do. so i don't think it's anything special beyond that. it's kind of in the culture of journalism that you have to do this. [inaudible] >> not as far as i know. and that's one of the good things about journalism. and the problem is we don't have, without a shield law and
without a privileged like a doctor or a lawyer, it's difficult, you know, all you have really is that cultural traditions within the professi profession, especially now that the government doesn't recognize that anymore. but that's a pretty strong cultural tradition within the profession. >> what do you make of the increased during the obama administration of the prosecutions and the intensity of this? i mean, why? what's motivating them? especially given that it's really unexpected, or was. >> yeah. i don't know. i mean, i've wondered that myself. i think it's probably pretty simple, whoever is president doesn't like leaks, doesn't like, you know, the executive
power is bipartisan, people like executive power. and i think, you know, barack obama may be more conservative than we thought, you know? i think he has shown that he's essentially continuing a lot of the national security policies of the bush administration. throughout, across the border. and i think this is part of the larger strategy by obama to insulate himself politically on national security issues from the right, by continue, more or less continuing a lot of the national security policies from the bush administration. why he's been more aggressive than bush on this, you know, any significant way, i don't quite understand it there because he's gone beyond what he would have had to do to insulate himself. >> but he did say when he was campaigning early on when he was campaigning for president that
he was opposed, that he thought the nsa eavesdropping policy was illegal. as a constitutional matter. >> yes. during the 2008 campaign he voted for immunity for the telecommunications companies, who have been involved. if you remember, that was an important issue in the summer of 2008, there was a bill, a pfizer reauthorization act included an amendment that the telecommunications industry wanted desperately because they are facing a lot of lawsuits for their involvement in nsa operations. the senate passed a bill giving them immunity from lawsuits for their involvement. and obama on waited until the very last moment to decide which way to vote on that, and he was
under enormous pressure from his base, and he decided to vote for immunity. and that was considered by a lot of people to be like the first sign of his change on national security issues. >> is it your sense that although it's striking that he is pursuing a lots of grand jury investigations and indictments in the area of national security reporting, is it your sense andd a sense of the washington press corps that it's pretty in line with the way he's running his administration in terms of dealing with the press? with reporters i've talked to it seems like his staff is very control, they are very restrictive and use that to their advantage. >> yeah, i think it's part of a larger is you, i think both on national security policy in his view of the press, i don't think
he particularly likes reporters, or likes the press in general. which is pretty common for most politicians. most of them hate us. i just think he is a much more traditional politician than people thought. >> i always remember i said on the intelligence committee saying to me, pointing to me and say, you're the only oversight of the intelligent community. and i said what do you mean? here the intelligence committee. >> deeply the value of the information that you have released to the public as far as the individual consequences that you faced timewise, pressure wise, moneywise? >> oh, yeah, absolutely. >> repeat the question. >> do you believe the value of information that you are given access for the public as far as the individual consequences you
faced. >> yeah, i just said i do. i think if, you know, i thought about at the time. i think i decided that with the nsa story and other stories i decided if i don't write these stories i should get out of the business, because this is what you get in the business to do. if you not going to do the stories, what are you going to do? these are the best torture ever going to get. and i thought during that time period i thought this is why, this is what i got to be, why i became a reporter. if i'm not going to do it now i should just get out of the business. >> but you didn't question what your judgment when your editor said we are holding the story? >> sure, i debated it, thought about it a lot. i decided i had, you know, i had to do it.
i think that, as i said, this was the most important work i've ever done. what was in this book, and what was in "the new york times" at the same time. i felt that way at the time, too. i felt this is why i became a reporter. >> thank you very much. is this on? from a reporter's point of view, why did the reorganization of national security into this homeland security apparatus actually help or hinder in journalistic access? thank you. >> journalistic access? >> well, the national security apparatus bold and dramatically
since 9/11. it's gotten bigger and bigger and more bloated. it's just enormous now. and it's made it from a reporting standpoint new challenges. one of the challenges trying to figure out who's doing what and it's more competition than it's ever been. you used to think well, there's some clandestine operation overseas, it's got to be this day. but that's not necessarily the case anymore. it could be a million other people. you now have this enormous growth of contractors both in the intelligence community and the defense community, other aspects. and so there are a lot of people secret operations being conducted by outside contractors. where there is virtually no accountability. and so the growth, the sheer growth of the budget, the growth
of the community, outsourcing of intelligence operations made it far more difficult to keep track of everything, but it's also in some ways made it a little easier to find people to talk to because there's so many more people involved than ever before. and there's a lot of people who are increasingly uneasy with the size and the scale of what's happened. that's really where i think most reporters will find that, the larger it gets and the more whistleblowers will come out. and i think that maybe what the government is afraid of. >> in light of the budget cuts on the federal level trying to
tighten the belt, is it a good story, when you have the big air pollutant full of maybe a million dollars worth of research that the taxpayer pay for that led nowhere, to make that itself a story? and another piece of this question is, what is the current electorates rationalization for this waste of money? i'm just guessing that if you ask americans on this phrase, well, at least they are being for rome, -- being thorough. and the problems with americans thinking that it is you don't realize being thorough takes brains. can americans learn that lesson? >> i don't know. i mean, as a reporter you try to ask specific questions, look at specific stories. but i think one of the things,
the "washington post" did a really good series on the growth of bloat and intelligence community. and that is something that to me is, i don't know how you on an ongoing basis keep writing about it all the time. without focusing more on, that's what i tried to do is find individual cases, things that need to be corrected rather than focus on the larger issues. >> may i ask you a question? in reading the judge's decision to quash the subpoena, the last time around, and knowing what the government has now filed, the judge says well, one of the reasons they don't need to get your testimony, your full testimony, is they have other witnesses here now, and so, therefore, they quashed the subpoena. now as i understand it the
government has come forward and said we used to have other witnesses, but the other witnesses one, married the defendant so she is a spousal exemption, and the other one is refusing to testify. so, therefore, or recanted their testimony, and now they really need you. >> that's their argument. [laughter] >> that's what is currently being litigated. that's what we're waiting to see what the judge is going to decide on. she's about to rule on their motion. >> you think that's the only witness they will ever have? >> no, no. they have other evidence. they have laid out other evidence. and the government has filed a motion along the lines that they are arguing what you just said, and we have filed a motion countering their argument. which i don't know if you saw
that. >> no, i haven't seen it yet. >> is on file, too. and arguing that they are, the government's arguments should not change, the judge should not change your mind. >> do you think judge brinkema will at some point hold in contempt? >> i don't know. i hope not. but we will see. >> another question on the nature of national security reporting. it's a very select field on the whole in terms of content. most americans have no insight whatsoever, vast majority have at lest the country, don't have a passport. incoming that field do you have, you feel as though you have a special sense of responsibility to get the story right, tell the story in a particular way so that an audience that may have
views about policy generally, but has no independent way of verifying it one way or another gets the right story? >> yeah. i mean, one of, yes, absolutely because i think one of the problems we had to do, as reporters we have to deal with a lot of anonymous sources in this area because the danger sources face in talking to us. so we have to that that material closely. because we know we're not going to be naming our sources in our stories. and so you have to develop a track record of being accurate. and essentially what you're eventually doing as a reader is accepting that, you know, the reporter who is writing that story has a track record of
accuracy. and so you have to develop a level of trust between a reader and a reporter that the anonymous sources that he is using, or talking about in the story, have told him, or the information is accurate. so that's, you have to build up a level of trust with the reader over time. and so you've got to be as accurate as possible. >> you said that there were five grand juries now? >> i think there are five prosecutions of people who have been alleged to have leaked to various news organizations. >> of the whistleblowers, not involving the reporters that you know? >> right. and i believe at this moment i'm the only reporter come in those
cases i'm the only one reporter who has actually been subpoenaed. >> do you have any sense if your testimony continues, the subpoena for your testimony continues to be quashed whether that will have some effect on the government's continuing interest, not just you, but the whole a? >> that's what i've tried -- the reason i thought this is because i think, i don't want them to think it's going to be easy to come after reporters. because i think, i think if i just caved into what they wanted to go after reporters all the time. the only reason they are doing it, now is because they got away with it in the plane case. but i still think they are afraid to do it on a regular daily basis, but i think if we start caving, they will.
and so that's one of the things i've been fighting for because, to make them know it's going to be damn hard to come after reporters and they shouldn't do it. [applause] >> my question was sort of a follow-up to the. you mentioned remaining to give it difficult for them to go after reporters. i was wondering if there's an effort to use the force of the press to expose specifically who is behind legislation that restricts and condemns your reporting? >> well, it's not a secret. i mean, it's the obama administration. >> i guess more like a name, an example, hoover for past restrictions. specific person. >> dianne feinstein has said publicly on the record as the
chairperson of the senate intelligence committee that it should not be an extension in the shield law for national security reporting. >> and president obama supported the loophole for national security reporting, and the justice department support of that. the justice department basically rewrote the law to fit that. >> there is an argument that you can't do this kind of reporting in almost any other country, right? that the government has to maintain secrecy, discipline, protect the people. >> right. >> so who are you to decide that it's time to make something public, when public officials, elected officials and others, take an oath to maintain the secrecy of the information,
because that is what they are told that is what they have to do, to make the system function. >> the beauty of the american constitution, the first amendment allows for freedom of speech for every american. >> but there are restrictions on what that speech can be. if it endangers others. >> well then that's what you go to court, to litigate those issues. but i think that the personal danger from yelling fire in a theater is different than, which i think is probably what they would try to argue this is like some mountain. they've never been able to prove the first of all, any damage, any real damage from any story in any publications that i know of. >> i'll give you an example. remember the story about osama bin laden and his satellite phone?
>> in the "washington times." >> the "washington times." more conservative publication. and that allegedly damaged the u.s. government's ability to track osama bin laden. >> yes, i've heard that debate. and i think also osama bin laden got the message that we are after him when a bunch of cruise missile's rain down on his camp on the coast. and i think that was a louder message than the "washington times" story. [laughter] which change all of his -- i know that the government has argued that many times. that that's one of the cases they can cite. but i think the problem is that we have a constitutional system that gives the freedom of the
press and and freedom of speech as a fundamental right, it's the first amendment, not the second amendment or the third amendment, it's the first amendment. and that was put into place a long time before the 1947 national security act which created the cia. so i think it predates and it's a fundamental building block of american journalism. no one likes to admit that an editor and a reporter in the united states have the freedom to write what they want. and if we lose that, we lose the uniqueness about the american system. because if we start reining in the american press in this way, it is the most fundamental change we could have as a society spent but it is one thing to be able to get "the new
york times" bureau to come in to the white house and talk to them and actually convince an editor not to run a story. >> right. >> and another deal, let's save julian a son and wikileaks actually sat at the table a couple years ago, who didn't seem to care whether or not they identified people in their cables. >> right. >> what are they to do in that case? >> it's a more complicated case, because you have to get into the issue of who's a journalist, what is, is it just that outpouring of data into the public journalism, is that covered by free speech went it is done overseas? interesting question, but i still think, the legal problem they have is that bradley manning, the alleged source of that information, has been
charged with a violation of protecting that information. now, that was an alleged criminal act that they can prosecute in a military court. is the fact that julian assange received that information -- >> allegedly. >> allegedly received that information, is not a citizen of the estate, is not in the u.s. military, did not have security clearance, receive information and put it on the web, is that a crime? and i don't believe it is. under the current existing laws of the united states, i believe bradley manning allegedly, whoever in the u.s. military got that information and leaked it may have violated the military laws. it's possible. that would be for a court to
decide. the publishers of the information i don't believe committed a crime, because they were under no obligation to protect that information. >> the natural question that arises as a result of the last few minutes is, is this going to go to the supreme court? is there any way you could lose this in the supreme court? there is no law, there is no official secrets law in this country, but will he go to the supreme court? >> in this case? >> your case. >> one of the things that i just come clear in the last few days is that the justice department doesn't appear to be ready to appeal to a higher court. so at least going to trial looks like, so it doesn't look like it's going, they could change their mind obviously, so it's
possible it could go to the supreme court. depends on the rulings that will come out, but we'll see. i don't know. >> do you think that's because of the makeup of the court, the appellate court? >> possible. there's been a lot of obama appointees to the fourth circuit, which maybe obama doesn't want to test how they would vote on this. i don't know. but it's an interesting issue. you know, i thought for a long time that it might, but as of now i'm not sure. >> okay. well, james risen, if you are in jail, how do we help you? >> send cards. [laughter] >> thank you. [applause]
between the u.s. and south korea and also some of the foreign policy goals the two countries share. the supreme court will decide whether the government can get involved in a workplace dispute between a church ask one of its employees. the church, hosanna tabor evangelical church and school v. the equal employment opportunity commission, a former teacher and minister who tried to return to work of after taking time off for a sleep disorder. the school fired her once she threatened to sue under the americans with disabilities act to get her job back. the supreme court heard the case last week. a discussion is expected before the end of the term in june. >> your argument first this morning in case 10553, hosanna tabor e van evangelical church d school v. the eeoc.
mr. laycock? >> mr. chief justice and may it please the court, the churches do not set the criteria for selecting or removed the offices of government, and imoft does not set the criteria for selecting and removing officers of the church. that's a bedrock principle, and these respondents would repudiate it. they no longer seriously argue that cheryl was not a minister. instead, they argue even people who are indisputably ministers can suture. s that turn claim -- >> would you clarify one point? you say the truth decides who's qualified to be a minister, but as i understand the facts here she was never decommissioned as a minister. and beyond that she was even recommended by the officials to
other parishes to be a commissioned minister. so it's odd to say there's any interferences with who is qualified to be a minister because the church was holding her out as being confidence. >> she was removed from my industry at hosanna-tabor. they do not have to indulge -- [inaudible] and if you look at that recommendation, it's this joint appendix, it is not much of a recommendation. there's excellent, commendable, proficient and in ministry qualities she gets proficient. we all know if there's a 5, 4 and 3, a 3 is not very good. they weren't not recommending her, they simply weren't pursuing formal charges against her before the missouri senate. and the problems they had were most severe at hosanna-tabor.
in another congregation that at no time know the history, she might have been effective again. that was for them to decide, they make their own calls. but she was removed at hosanna-tabor which was where the problem was. >> counsel, most of the circuits have recognized a ministerial exception, but they've in one form or another created a pretext exception. the reason for that is the situation that troubles me. how about a teacher who reports sexual abuse to the government and is fired because of that reporting? now, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting
women, ask i believe children -- and i believe children. regardless of whether a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable even if religious? smoking pay owety? -- pay quote? and once we say that's unacceptable, can and why shouldn't we protect the people or doing what the law requires, ie, reporting it. so how do we deal with that situation under your theory? under your theory nothing survives if individual's a minister. no claim, private claim. >> i think if you look at the court of appeals cases, they have not indulged in pretext queries for ministers. the case you present is, obviously, a difficult case. and i would say two things. we think the appropriate rule
should be doing many things to force reporting, penalize people who don't report, but a discharge claim by a minister presents the question why she was discharged, and the court should stay out of it. >> the problem with that is that it doesn't take account of the societal interests in encouraging the reporting. and, in fact, if we define the ministerial exception in the way you want, we take away the incentive for reporting. we actually do the opposite of what shot needs. >> i -- of what society needs. >> i understand that concern, and that was my second point. if you want to carve out an exception for cases like child abuse where the government's interest is in protecting the child, not an interest in protecting the minister, when you get such a case, we think you could carve out that exception. >> how? give me a theoretical framework for this. >> okay.
um, the -- first, you have to identify the government's in regulation. if government's interest is in protecting ministers from discrimination, we are squarely within the heart of the -- if government's interest is something quite different from that, like protecting children, then you can assess whether that intre is sufficiently compelling to justify interfering with the church and its ministers. but the government's interest is at its nader when the claim is we want to protect these ministers as such, we want to tell the churches what criteria they should amy for -- apply for selecting and removing ministers. >> mr. laycock, the ministerial exception is not something new. it has been widely recognized, as justice sotomayor mentioned, by the court of appeals going back 40 years. so we can see how the recognition of this exception
within, with certain contours has worked out. and how has it worked out over those past 40 years? have there been a great many cases, a significant number of cases involving the kinds of things that justice sotomayor is certainly rightly concerned about in which ministers have been fired for reporting criminal violations and that sort of thing? >> the only -- i'm not aware of any such case. the one case i am aware of cuts the oh -- other way, a myster, a priest accused of sexually abusing children was fired, and in that case they were able to get rid of him. there is a cert petition pending in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student or parent at school, someplace else, and called the police and
had them come interview a student without any communication with, with her principal. and the responsibilities too -- the respondents try to spin that as a case, but if you look at the facts, it's really quite different. and those are the only two cases i'm aware of that only approach tauping on this problem. >> but here what we have can s a claim of retaliation so that she can't even get a hearing. so we can look at the various tees proposed here. i think it's difficult to formulate the test. but this can't even be litigated because she is discharged -- the allegation is -- that there's a retaliation for even asking for a hearing where these tests could be applied. >> well, she can't get a hearing in civil court. she could have had a hearing in the senate before decision makers who would have been independent of the local church.
this court has repeatedly said churches can create tribunals with the governance of their officers, churches -- >> again, that could be an argument you could make in the pretext hearing. >> well, it's an argument we make in the hearing on one of the min streerl exception -- on whether the ministerial exception aprice. >> but you're asking for an exemption so these issues can't even be tried. >> well, we're asking for a -- >> almost like a summary judgment. >> it was precisely a motion -- >> that's a analogy, i think. >> it was a motion for summary judgment. >> no, no, no, what she is saying is that you basically gave me summary judgment, you department allow me to go to the -- you didn't allow me to go to the agency to have a proper test applied. the summary judgment was just an analogy. forget it. [laughter] >> i'm not entirely sure i understand the question. we agree she couldn't go to
civil court if she's a minister. she could have gone to the senate, she wasn't cut off from doing that. >> i am saying if there's a substantial interest that the church has that can be litigated in the eeoc hearing. she was fired simply for asking for a hearing. >> i understand that. but once you start to litigate these cases -- >> i think your point is that it's none of the business of the government to decide what the substantial interest of the church is. >> that's one of my points. maybe the most important of my points. [laughter] these decisions are committed to churches by separation of church and state. but beyond that once this process of trying to identify we can decide some issues in this case, and we won't get to other issues in this case doesn't work. as justice breyer said in a first circuit opinion, that requires more and more finely
spun decisions that create entanglement than avoid it. [inaudible conversations] >> you referred to the ministerial exception, but, of course, your position extends beyond ministers. how do we, how do we decide who's covered by the ministerial exception and who is not? >> right. um, here i think it's very easy. she's a commissioned minister in the church, she holds ecclesiastical office. >> well, let's say it's a teacher who teaches purely secular subjects but leads the class in grace before lunch. is that somebody who would be covered by the ministerial exception? >> the lower courts have said that perp's not covered, and -- that person's not covered, and we're not challenging that rule. obviously, there has to be some kind of quantitative threshold, there will be line-drawing problems -- >> and i thought your position would be if she's a commissioned minister as distinguished from a teacher who conducts grace or
takes the class to chapel. i take it the chief is asking for somebody in this -- you categorize as a minister although mostly she's a math teacher, you would say the extent of her religious duties don't matter, what counts is that she is commissioned as a minister. >> if she's commissioned as a minister and if that is not a sham, then we think that makes her a minister. if you have a jesuit teaching physics, we think he's still a priest, and he's still controlled -- >> can we try whether it's a sham? i thought you said we couldn't try whether it's a sham. >> well -- >> is a sham different from a pretext? [laughter] >> i certainly meant something different from a pretext. sham is more extreme, and it goes to a different point in the analysis. you can decide whether she's really a minister. that's the threshold question that courts must decide, and we
have a person with a ministerial title who's doing nothing at all religious or ministerial. we have a church who tries to say everyone who ever worked for us as a myster, the courts can deal with those cases. >> so you would allow the, the government courts to probe behind the church's assertion that this person is a minister. you would allow that, right? but once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext. >> that's right. >> different churches have different ideas about who's a minister. there are some churches who think all of our adherents are ministers of our faith. now, does that mean that everybody who's a member of that church qualifies as a minister because that is part of the church's belief? >> i don't, i don't think it means that. and, again, i, i think courts
have some capacity to look at what this employee is actually doing. and if he's not performing any of the funks of a religious leader, if he's not teaching the faith, then -- >> every one of our adherents stands as a witness to our beliefs, and that, you know, not every church is hierarchical in terms of different offices. >> right. i understand that. and -- but, you know, lay people in many churches are expected to be witnesses. >> lay people in many -- >> lay people have to be witnesses, the fact that you are expected to witness to the faith when the occasion arises doesn't make you, doesn't make you a minister. >> but the answer you gave to the chief justice seems to me to be this case. i was interested. i didn't know about this, this minister capacity in this particular church, and as the chief justice indicates, many
churches, some churches don't have what we think of as professional or full-time ministers as all. -- at all. that can be litigated. that can be investigated. and i suppose when we do that, we say how many secular funks do you -- functions do you perform? and that's what this case is. but you don't even want that issue to be tried. you say that issue can't even be explored. >> no, how many religious functions you perform can be explored. the issue that can be explored is whether she's a minister, and we think she clearly is. >> that term is a legal term. what constitutes a minister is decided by the law, not by the church, right? >> that is correct. >> okay. >> that is correct. >> but i thought with a lot of deference to the church's understanding of whether someone is a minister. >> we think there should be deference to good faith understandings, but we are not arguing for a rule that would
enable an organization to fraudulently declare that everyone is a minister when it's not true. you decided the tony alamo case 20 years ago, we're not defending that -- >> what makes it not true? what is the legal definition of minister. what is it, that you have to lead the congregation in their religious services or what? >> we think, we think if you teach the doctrines of the faith, if that is part of your job responsibilities, to teach the doctrines of the faith, we think you're a -- >> does that mean that any religious teacher is a minister under your theory? so, you know, there may be teachers in religious schools who teach religious subjects, not mathematics, but are not orr kind or commissioned in any way as ministers. are they ministers? >> if you're ordained or commissioned, that makes it very easy. if you teach the religion class, you teach an entire class on
religion, we think you ought to be within this rule. >> i thought it was agreed that there was no back dispute, that what she did, her duties at the school kid not change. concern did not change from when she's a contract teacher and, therefore, not a minister. and then she takes courses and is qualified to become a minister. but what she's doing at the school is the very same thing, and i thought that was the basis for the decision that we're reviewing, that there was no difference at all in what she did before she was commissioned and after she was commissioned. >> that's what the sixth circuit said. um, what they, you know, i don't think that changes the nature of the functions that were being performed, but what's relevant to that that they neglected was
these noncommissioned, these teachers who were not commissioned ministers, the lay and contract teachers were fill-ins, and parents identify only one person for one year. >> well, you're isolating one parish, but there was something in one of these briefs that said the majority of the teachers in the lutheran schools -- let's see where it was. i think it was -- >> while justice ginsburg is looking, i had the same impression, that whether you're commissioned or not commissioned doesn't necessarily mean you can't teach a religious class. >> well -- >> and, again, that's something that can be heard. you don't even want to hear it. >> it is not uncommon even with ordained ministers, it's not uncommon among protestants to recognize an ordination from a different denomination as similar teaching.
so when they can't find a called minister to cover a class and hire another christian from another conservative protestant denomination, they say -- >> i'm sorry. going back to the question justice kagan asked you, if one of these protestant teachers that's not lutheran led the cafeteria prayer as they're priored to, you're -- as they're required to, you're now saying that the law must recognize that lay teacher as a minister and apply the ministerial exception even though the religious doesn't consider her a minister? >> i didn't say that. >> well, but that was the answer you gave. if she taught a religious class -- >> she teaches a religion class. >> so what is your definition of minister? maybe we need to find out. so it's not a title, it's really the only function you're saying anyone who teach religion -- >> i think if you teach the religion class, you're clearly a
minister. but if you are, if you hold an ecclesiastical office, that makes this a very easy -- >> okay, but this is, you're saying, basically, you'd be here anyway even if she hadn't been orr kind, right? >> that's correct. >> okay. >> what is your -- [inaudible] what is your reaction to a less dramatic kind of holding? suppose twoarp say the truth is that the particular individual here does have some religious obligations in teaching and quite a lot that aren't. so she's sort of on the edge. at the same time, there is a statute which whether it applies or not, you could take the principle. and it says a religious organization like your client may require that she conform to the religious tenets of the organization. so congress focused on this. and the district court looks at
it, and suppose it were to decide, that's true, but there's no evidence here at all that religious ten ends had anything to do with her being dismissed. no one mentioned them, she didn't know about them -- i didn't want until i read the very excellent brief filed by the lutherans that explained the nature of taking civil suits. no one said that to her. whether it was in someone's mind or not, she found out on motion for summary judgment. so this wasn't an effort by the religious association to express its ets -- tent ets. she could have had a defense, but it doesn't apply. and, therefore, even though she's sort of like a min 12er, she loses. what are your objections to that? be. >> well, my first objection is i don't think those are remotely the facts here. this teaching is clearly stated, embodied in the elaborate dispute resolution process.
>> did anyone mention that to her? >> indeed. >> really? my law clerk couldn't find it. can you tell me where, where someone did say the reason we're dismissing you is because of our religious doctrines that you cannot bring civil suits? >> page 55 of the joint appendix which is the letter where they tell her that they're going to recommend rescission of her call. they say because of insubordination and because you threatened to sue us. >> i mean, does anyone explain to her which she might not have known that this is a religious doctrine that you are supposed to go to the sigh not or whatever and you're not supposed to go to court? of course they wanted to fire her because she threatened to sue them. but what i'm wondering is, is there anywhere before the motion for summary judgment where someone explains to her our motivation here is due to our religious tenet? >> you don't assess the importance of a doctrine by asking the person -- >> no, no, i understand that.
but a different piece of matter, that the people who were involved in this were doing it for religious rather than civil reasons. i'm just wondering what the evidence is that they knew there was such a doctrine, that they were motivated by the religious doctrine and that they expressed that to her. i'll look at page 55. is there anything else i should look at? >> if it's in the handbook, i mean, one of the objections, if this is a rule that's going to bind the teachers, then you would expect to find it in the handbook. but the handbook doesn't tell her if you complain to the eeoc about discrimination, then you will be fired. >> well, i don't know if it does or it doesn't because the handbook's not in the record except for a short excerpt. but she knew about this rule. >> stop for citation. is there anything you want me to read other than page -- >> yes. the principle in her deposition
says the minute she said i might sue, i said, you can't to that, you're a called teacher. the board talked about at their meeting on february 22nd, i think that's also in the deposition. the president of for congregation who did not deal directly with her said it was one of the first things that he thought about. she was a lifelong lutheran, she worked 11 years in the lutheran schools. simply not credible that she department know -- >> doesn't this inquiry, doesn't this illustrate the problems that will necessarily occur if you get into a pretext analysis? the question of was she told that she had violated the church's teaching about suing in a civil tribunal? well, that depends. the significance -- let's assume she wasn't told.
the significance of that depends on how central a teaching of lutheranism this is. suppose a catholic priest got married, and the bishop said i'm removing you from your parish because of your conduct. now, there wouldn't be much question about why that was done. what did martin luther actually say ant suing -- about suing the church? is this really a central tenet of lutheranism? isn't that the problem with going into this pretext analysis? >> that's just part of the problem. you've got to figure how does this doctrine work, how important is it, how does it apply to the facts of this case, how does it interact -- >> mr. laycock, you in authorizing to dispel the notion that nothing is permitted, in your reply brief you say that there are many be suits that could be brought that would not
be inappropriate, and i think it's on page 20 of your reply brief. but i don't understand how those would work if the policy is you're a minister if you have -- [inaudible] with the church or coworker. we have our own dispute resolution, and you don't go outside. but you say tort arising from unsafe working conditions. suppose one of these commissions workers said i think there are up safe working conditions -- unsafe working conditions, and i'm going to complain to the occupational health and safety agency. wouldn't she get the same answer? this has to be solved in house. you don't go to an agency of the state. why -- i don't follow why the tort claim based on unsafe
working conditions would not fall under the same ban on keeping disputes in house. >> well, it may or may not. the rule on internal dispute resolution is most emphatically and clearly stated as a point of dispute over fitness for ministry. and a tort claim may not be a dispute -- >> but i thought the reason she was unfit for the ministry was that she went outside the house. >> right. >> so in one of these cases you go outside the church, you go to the government, then you have -- >> what we say in the passages in the reply brief that you're looking at is the legal doctrine, the ministerial exception is a matter of law, does not apply unless the dispute is over whether i get the job back, job qualifications, job performance or rules of ministry. >> but if she could be any of these things, she could be
disciplined, fired because she complained outside the house. >> she could be, and her tort, the tort claim would proceed, we think the retaliation claim should not proceed. >> the tort claim could proceed, and then she would get damages, and that would be all right? >> she would get damages for the tort. she would not get damages for the loss of her position. >> did you say, did i understand you before in response to justice sotomayor and justice and ally ya that even -- scalia that even if she were merely a contract teacher, the fact that she teaches religion classes would be enough for her to qualify for the ministerial exception? >> yes. and the fact that she's a commissioned minister is the clincher in this case. >> it's the clincher in this case, but even i think you
answered if she were not a commissioned minister, she's teaching the faith, therefore, she can be fired, and it doesn't matter whether she's commissioned. so the commission is irrelevant. it's her job duties that count. >> job duties are enough, commission is not irrelevant, it is the clincher. >> it was certainly for some purposes, i mean, if every teacher who teaches religion and math and a lot of other things said i'm a minister and i'm entitled to the pass sonnage -- parsonage allowance on my income tax return, certainly, that's something that a government agent would review. >> they do review it there. i think they're -- i don't think the movements of are any problems of the irs, but, yes, that is a context where they review these questions. if i could reserve a few minutes for rebuttal, i would be grateful.
>> you may. >> ms. kruger? >> mr. chief justice, and may it please the court, the freedom of religious communities to come together and express religious belief is a fundamental constitutional right, but it's a right that must also accommodate important governmental interests in securing the public welfare. congress does not constitutionally infringe petitioner's freedom in this case by making it illegal to fire a fourth grade teacher in retaliation for asserting her statutory right. >> is the position of the united states that there is a ministerial exception or that there is not a ministerial exception? is. >> mr. chief justice f the ministerial justice is understood as a first amendment doctrine that governs the adjudication of disputes between certain 34r0es and their employers, we agree that first amendment doctrine exists. >> nothing to do with respect to
the ministers. in other words, is there a ministerial exception distinct from the right of association under the first a amendment? is. >> we think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses. >> is there anything special about the fact that the people involved in this case are, have part of a religious organization? >> we think that the analysis is one that the court has, has elaborated in other cases involving similar claims to autonomy, not interference -- >> is that a no? you say it's similar to other cases. a group of people who are interested in labor rights have expressive associations. is the issue we're talking about here, in the view of the united states, any different than any other group of people who get together for an expressive right? is. >> you think of the basic contours are not different. we think how the inquiry plays out in particular cases may
be -- >> extraordinary. >> i -- >> extraordinary. >> we're talking here about the free exercise clause, and you say they have no special application? >> but the inquiry that the court has set out in its expressive associations, we think, late quite well to analyzing the claim that petitioner has made here, and for this reason we don't think that the job duties of a particular religious employee in an organization are relevant -- >> there's nothing the constitution that explicitly prohibits the government from mucking around in the labor organization. now, yes, you can by an extension pg of first amendment rights derive such a -- but there black on white this text of the constitution are special protections for religion, and you say that makes no difference. >> well, justice and ally ya, if i may, i don't understand petitioner to have disputed this basic point which is the
contours of the first amendment doctrine at issue here will depend on a balancing of interests. that is the only way, i think, petitioner can differentiate a generally mutually applicable application of antidiscrimination law with respect to a choice of those who would govern it and a church's retaliation against a teacher who would report child abuse to the authorities. >> i think that the balancing of interest is different according to the petitioner when one of the interests is religion. and you're just denying that. you say we balance religion the way we balance a labor organization. >> well, justice scalia -- >> that's certainly not what the petitioner is saying. >> here is where i think the core is, which is that there are certain relationships within a religious community that are so fundamental, so private and ecclesiastical in nature that it will take an extraordinarily compelling governmental interest to justify interference. concerns with health or safety, for example. but the government's general interest in eradicating
discrimination in the workplace will not be sufficient -- >> do you excuse the proposition that one of the central concerns of the establishment clause was preventing the government from choosing ministers? when there was an established church, the government chose the minister, so had a say in choosing the ministers. and the establishment clause, many argue, was centrally focused on eliminating that governmental power. now, do you dispute that? >> no, justice alito, we don't dispute it. we do dispute when the government applied generally applicable retaliation law is that it is choose ago minister on behalf of the church, what it is instead doing is preventing religious employers like any other employers from punishing their employees for threatening to bring illegal conduct -- >> you say that's a central tenet. suppose you have a religion, and the central tenet is you have a problem with what we do, go to the sinai. don't go to court. and that applies to civil
actions of all kinds, so would that not be protected by the first amendment? >> justice breyer -- >> your view is it's not protected? >> it's not protected, but i'd like to -- i think there are two responses that are relevant to how this court would resolve that question in this case. first of all, if court were to accept the rule that petitioner would ask it to adopt, we would never ask ask a question whether or not the church has a reason for firing an employee that's rooted in religious doctrine. their submission is that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits, and we think that that is a rule that is insufficiently attentive to the relative public and private interests at stakement interests that this court has repeatedly recognized are important in determining -- >> so, in fact, if they want to choose the priest, you could go to the catholic church, say they have to be women. i mean, you couldn't say that, that's obvious, so how are you
distinguishing this? >> right. we think that both the private and public interests are very different in the two scenarios. the government's general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way the catholic church chooses its priests based on gender roles that are rooted this religious doctrine. but the interests in this case are quite different. the government has a compelling and, indeed, overriding ininsuring that individuals are not prevented from coming to the government about illegal conduct -- >> when you say that, are you not implicitly making a judgment about the relative importance of catholic doctrine that only males can be ordained as priests and the lutheran doctrine that a lutheran should not sue the church in civil courts? i don't see any distinction between -- i can't reconcile your position on those two issues without coming to the conclusion that you think the catholic doctrine is older, stronger and entitled to more
respect than the lutheran doctrine. >> no. we're not, we're not drawing distinctions between the importance of a particular religious tenet in a system of religious belief. but the difference is the government has a, indeed, foundational interest in insuring as a matter of preserving the integrity of the rule of law that individuals are not punished for -- >> you're saying that going to church, sorry, that going to court is a more fundamental interest than a woman obtaining the job that she wants? be which happens n this case, to be a catholic priest? that's the distinct you're making? >> i am draw ago distinction -- >> i don't know why that doesn't -- you may be right, but it isn't obvious to me that the one is more important than the other. >> the government's interest in preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to the rule of law. >> ms. k, ruger, i'd like to clarify because you're now saying as though you want to draw a sharp line, and i didn't
get that from your brief. so is that, in fact, what you're saying? >> i think that there is an important distinction to be made in the government's interest in insuring people are not shield -- [inaudible] but if i could continue. >> so are you willing to accept the ministerial sense for substantive discrimination claims, just not for retaliation claims? >> i don't think those are the only two sets of inquiries that are important, and if i could continue -- >> i'm sorry -- [inaudible conversations] i think that question can be answered yes or no. >> i think that that doesn't, i think the answer is no in part because that doesn't fully account for all of the public and private interests at stake. the government's interest extends in the this case beyond the fact that this is a retaliation to the fact that this is not a church operating internally to promulgate and express religious belief
internally. it is a church that has decided to open its doors to the public to provide the service, socially beneficial service of educating children for a fee in compliance with state compulsory education laws. and this court has recognized in cases like bob jones that church-operated schools fit in a different position with respect to the permissible scope of governmental regulation. >> even with respect to their religion cases and their theology classes? that's extraordinary. >> well, the government -- >> just because, just because you have to comply with state education requirements on secular subjects, your -- who you pick to teach theology or to teach religion has to be subject to state control? >> >> justice scalia, to be clear, the government's interest in this case is not in dictating to the church-operated school who it may choose to teach religion classes and who it may not. it is one thing and one thing only which is to tell the school that it may not punish its
employees for threatening to report civil wrongs to civil authorities. that is an interest that we think overrides the burden on the association's religious message about the virtue of internal dispute resolution as opposed to -- >> you're making, you're making a judgment about how important a particular religious belief is to a church. you're saying -- this may just be the same question justice alito asked, but you're saying we don't believe the lutheran church when it says this is an important and central tenet of our faith. >> no, absolutely not, mr. chief justice. we do not dispute when they assert that it's an important tenet, we assume its validity, we assume that they are sin veer in that -- sincere in that religious belief. sincere religious belief was not sufficient to warrant an exemption from generally applicable tax laws as involved jones -- >> on the other hand, the belief of the catholic church that priests should be male only, you do testify to that.
defer to that. even if lutherans say, look, our dispute resolution belief is just as important to a lutheran as the all-male clergy is to a catholic. >> yes, but that's because the balance of relative public and private interests is different in each case. >> do you believe, ms. kruger, that a church has a right that's grounded in the free exercise clause and/or the establishment clause to institutional autonomy with respect to its employees? >> we don't see that line of church autonomy principleses in the religion clause jurisprudence as such. we see it as a question of freedom of association. we think this case is, perhaps, one of the cases -- >> so this is to go back to justice scalia's question because i, too, find that amazing, that you think neither the free exercise clause nor the establishment clause has anything to say about a church's relationship with it own, um, mows. >> we think that this is one of
the cases that employment division v. smith may have been referring to when it referred to free association claims that are reinforced by free exercise concerns. it's certainly true that the association's claimed autonomy in this case is one that is deeply rooted in concerns about how it exercises its religion. those two things merge in some ways in that respect. >> i don't think they merge at all. smith didn't involve employment by a church, it had nothing to do with who the church could employ. i don't, i don't see how that has any relevance to this. i would, i didn't understand your answer to the chief justice's question. you say that there were different institutional values or government values involved with respect to a catholic priest than there is with respect to this lutheran minister. let's assume that a catholic priest is removed from his duties because he married, okay?
and he claims, no, that's shot the real reason. that's not the real reason. the real reason is because i threatened to sue the church, okay? so that reason is just pretextual. would you, would you allow the government to go into the, into the dismissal of the catholic priest to see whether, indeed, it was pretextual? >> i think the answer is, no, justice scalia. >> why? why is that any different from the lutheran minister? is. >> i would begin with looking at the burdens on association under the balancing test. i think that the core of the understanding of ministerial exception as it was elaborated in the lower courts is that there is a fundamental difference between governmental regulation that operates to interfere with the relationship between a church and those who would govern it, those who would preach the word to the congregations, those who would administer sacraments on the one
hand and the relationship between the church and school teacher thes -- >> i think that's saying nothing different than what the chief justice suggests, that you think the one is more important to catholics than the other is to lutherans. >> i don't think it's a question of the importance of either function to the religious association. it's a question of the realm of permissible -- >> yeah, but then you have to say it's more important to let people go to court to sue about sex discrimination than it is for a woman to get a job. now, i can't say that one way or the other. so i'm stuck. and since i'm really sort of -- this is something i'm stuck on this, i don't see how you can avoid going into religion to some degree. you have to decide if this is really a minister, for example, and what kind of minister. that gets you right involved. if you're not going to do that, you're going to go and look to see what are their religious tenets. and ask that gets you right involved -- and that gets you right involved. i just can't see a way of
getting out of the whole -- i don't see how to do it. so suppose you said in case of doubt like that, we'll try what congress suggested. and now we have you're a borderline case of ministry. not the heartland case. you say, all right, we have a borderline case, the constitutional issue goes away, and what congress said is okay. so now what you have to prove is you have to prove that the church has to show that the applicant was disciplined or whatever because she didn't conform to the religious tenets. all right? that's what they have to show. and i'm sorry, maybe they only make a prime fay si case, but they've got to show it, and if they don't show there was at least some evidence to that effect and somebody knew about the religious tenet and there was something like that, maybe it's this air as obvious with justice alito's question, but where it suspect, you'd have to make a showing. now, i see that's an interference, but i don't see
how you avoid an interference someplace or another. otherwise you're going to get into who's a minister. so what's the answer to this dilemma? at the moment i'm making an argument for following what congress says, go back and try it that way, and if they can show in this case and she shows in this case -- nobody ever thought of this tenet, nobody told me, they didn't read it, then she's going to win. and if they come in and show that they really did this because of their religious tenet, they'll win. what about that? >> justice breyer, i think that that is a perfectly appropriate way to come at this case, although it skips over sort of the initial inquiry which is into whether or not the application of the regulation to the particular employment relationship results in an unwarranted interference -- >> well, it does have the vir chu of -- virtue of deciding a statutory question, and i agree with what we sometimes do that seems bizarre, but i thought
that was the basic rule. >> i think that's absolutely right, justice breyer. and i think the next question comes whether deciding the case would require the court to decide disputed matters of religious doctrine or to second guess essentially subjective -- >> if plaintiff proceeded that way, would she be entitled to -- i assume she would -- introduce testimony by experts on lutheranism, theologians, professors of religion about how, about this tenet and it suspect really they might say, well, it's really not that strong, and it once was, but it's faded, and it's not widely enforced. and then you'd have experts on the other side, and you'd have a court and a lay jury deciding how important this really is to lutherans. is that how that would play out? >> >> no, it's not how -- >> how are you going to avoid that? i just don't see it. >> any inquiry into the validity of a particular religious doctrine is simply a relevant
adjudication of the dispute -- >> no, it's not irrelevant. i've seen dozens and dozens and dozens of pretext case, and one of the central issues is whether the reason it was proffered by the employer is the real reason, is an important reason for that employer and whether they really think it's important and whether they apply it across the board. that's almost always a big part of the case. and once you get into that, you're going to get into questions of religious doctrine. i just don't see it. let me give you an example of a real case. a nun wanted to be, wanted a tenured position teaching canon law at a catholic university, and she claims she was denied tenure because of her, because of her gender. now, there the university might argue, no, she -- and did argue, she was denied tenure because of the quality of her scholarship. and okay, now, if you try that
pretext issue, the issue is going to be what is the real quality of her canon law scholarship and you're going to have a judge and jury decide whether particular writings on canon law make a contribution to canon law scholarship? how can something like that be tried without getting into religious issues? >> if only way the plaintiff has to show that may not have been the employer's main reason, was a subjective judgment, then judgment has to be entered for the employer because the plaintiff has no viable way consistent with the establishment clause of demonstrating that wasn't the employer's real reason. if, on the other hand, the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school and those roles were not ones that were required to be filled by persons of a particular gender consistent with religious beliefs, then that's a case in which a judge can instruct a
jury that its job is not to inquire as to the validity of the subjective judgment just as juries are often a informed it's whether the employer was motivated by discrimination of retaliation. >> thank you, ms. kruger. >> mr. chief justice -- >> [inaudible] >> mr. dellinger? >> yes. >> could you assume -- sorry. [laughter] >> could you assume for me that is it -- >> justice kagan. [laughter] >> i feel like i've missed something. [laughter] mr. dellinger, could you assume for me that there is a ministerial exception that's founded in the religion clauses and tell me who count as a
minister and why this commissioned minister does not count as a minister. >> i believe that there is a exemption grounded in the religion clauses. it means that religious organizations will win, prevail in many cases in which a comparable civil organization would not prevail. i don't think that it makes sense to approach it in a categorical way of asking -- >> i'm just asking you to assume with me for a moment that there is a categorical exception and to tell me who you think counts as a minister and why the woman in this case does not. >> well, in our view if that was the test, then we would say that the court of appeals was correct in holding that she was not a minister, and the principle reason is she carries out such important success lahr functions in addition -- secular functions in addition to her -- >> i'm sorry to interrupt you, but that can't be the test. the pope is a head of state
carrying out secular functions, right? >> [laughter] those are important. so he's not a minister? >> chief justice roberts, i do not want to suggest that a it's a very good approach to try to decide who's a minister and who's not a minister. what's wrong with professor laycock's categorical approach because it's both over and underinclusive. it sweeps in cases where there is, in fact, no religious reason offered -- >> only if we adopt your test. why isn't a perfectly reasonable test where weather the person although the person may have a lot of secular duties, whether the person has substantial religious responsibilities? >> and the reason that is not a satisfactory test is it fails to take account of the important governmental interests. for example, in this case and having everyone have access to the courts -- >> but that isn't the problem. the problem, it seems to me, is i don't know how substantial these interests are religiously.
i don't know how substantial the religion itself considers what they do from a religious perspective. so let's go back to justice alito's problem, and now on the ministerial issue we call the psi nods, how central is it to the heart of the religion, what they're actually doing, and we replicate exactly what he said inspect to the problem of the religious tenet, now inspect to the problem of religious minister. and maybe you can tell me we don't have to go into the one or another, but i've had enough of these cases from the lower court to know they are really hard. people believe really different things, and i see no way to avoid going into one or the other. and, therefore, i think rather than try this constitutional matter, let's go to the one congress suggested. >> with well -- >> now, what do you -- >> the argument that you're walking into, i think. >> if we go to congress, congress made it quite clear how
this case should be resolved because congress expressly did not apply the religious exemptions of the ada to retaliation -- >> no, i don't agree with that. i think what it says is a religious organization may require that all applicants and employees conform to the religious tenets. it put that in the section defining defenses. the defenses are part of the right, and when it forbids retaliation, it says forbids retaliation against an individual for the exercise of any right granted. and, therefore, i don't believe that a person who has failed to violate the substantive section could be held up normally. i mean -- >> well, we differ on that. i think it's pretty easy to read that exception even though it's in a different subchapter into the retaliation's exception. >> well, assume for me that that's so. >> it is still the case it is a constitutional matter. the state's interest in allowing
citizens to have access to its courts and to its agencies is paramount in cases like child abuse, reporting of school safety problems and others. in this case it's we are mindful -- >> but it's not paramount. take the firing of a catholic priest example. does that get into the courts? >> no, it doesn't -- >> why not? >> >> -- and the reason is, and that points out, justice scalia, that there are ample doctrines to protect church autonomy. one is that under the establishment clause there could be no reinstatement of someone ordered by an ecclesiastical position. >> but he can sue for money, right? >> i do not believe that he could be reinstated or get damages for removal -- >> not be reinstated, for money. he can sue for the loss of -- >> i think in that case that is very likely to fail because you're going to run into issues of religious doctrine or
evaluations of distinctly religious matters like eeoc v. catholic university. those doctrines still stand. the problem with this categorical exception is it sweeps in if cases like this one where the well-pleaded complain ant in this case simply says i was dismissed from my employment because i said i was going to make a report to the oh, eeoc, d she's not seeking reinstatement -- >> let's just come back to the example of the canon law professor. i still don't see how the approach that the solicitor general is recognizing, is recommending can eliminate the problems involved in pretext. so the, as i understood her -- >> you can see the remainder of the supreme court oral argument in the c-span video library. go to c-span.org. we are leaving it here to go live to the white house for the arrival ceremony for south korean president lee myung bak.
he landed yesterday here in washington and today is the start of his official state visit. he and president obama scheduled to have a joint news conference early this afternoon before the president leaves for capitol hill. he'll be speaking before a joint meeting of congress. he will then return to the white house this evening for a state dinner. [background sounds] [inaudible conversations] [background sounds] [background sounds]